—Jill Goldenziel, Marine Corps University-Command and Staff College; Fox Leadership International Affiliated Scholar, University of Pennsylvania. Professor Goldenziel’s views do not represent those of her University or any other arm of the U.S. Government.

[Editor’s note: This
is one of our biweekly I-CONnect columns. Columns, while scholarly in
accordance with the tone of the blog and about the same length as a normal blog
post, are a bit more “op-ed” in nature than standard posts. For more
information about our four columnists for 2019, see here.]

Freedom of speech and expression and the right to privacy
are two constitutional rights that democracies hold most dear. These freedoms
are entrenched in the constitutions of most democracies around the world. Freedom of speech is especially prized in the
United States, which has some of the least restrictive laws on freedom of
speech in the world. The right to privacy is also especially important in
democracies. In Europe, the right to
privacy has been a hot-button legal issue in the context of the Internet, and a
related “right to be forgotten” has been developing. While the right to privacy
is not explicitly enumerated in the U.S. Constitution, it has developed in
interpretation of many Constitutional amendments, including the Fourth, Fifth,
Ninth, and First. U.S. citizens are fiercely protective of their right to
privacy against government interference of their freedom of speech. The Privacy Act of 1974, enacted while
Americans recoiled from Watergate and the Soviet government’s efforts to
surveil Soviet citizens, places significant restrictions on the U.S.
Government’s ability to collect data related to the First Amendment activities
of U.S. persons.

As detailed in my new article, “The New Fighting Words: How U.S. Law Hampers the Fight Against Information Warfare,” (with Manal Cheema), enemy states are now weaponizing these prized freedoms against democracies. Russia’s information warfare campaigns against Estonia, the Ukraine, and the U.S., for example, have been well publicized. According to the U.S. Department of Justice, foreign-influenced operations like Russia’s include covert actions intended to “sow division in our society, undermine confidence in democratic institutions, and otherwise affect political sentiment and public discourse to achieve strategic geopolitical objectives.”[1] Well before the 2016 U.S. Presidential election, Russia was using online sources disguised as news outlets to produce and distribute fake news, targeting key voter groups. Russia’s sophisticated information warfare campaign against the integrity of the U.S. electoral process continues as it seeks to influence the 2020 presidential election.

Democracies’
laws involving freedom of speech, expression, and information and the right to
privacy, tie their hands in the fight against information warfare. An example from the U.S. illustrates this
point. In 2016, the U.S. State Department planned a program to identify online
influencers who were spreading Kremlin messages and use counterarguments
against them.[2] However,
the Privacy Act of 1974 restricts government data collection related to U.S.
persons’ exercise of their First Amendment rights. The program might
inadvertently collect U.S. persons’ data, and it did not fall under the Act’s
law enforcement exceptions. State Department lawyers quashed the program,
reasoning that collection of tweets and retweets would qualify as data
collection related to U.S. persons’ First Amendment rights.

The Article argues
that the United States must reform its laws and update its interpretation of
the First Amendment to protect national security and the democratic process. It
explains how interpretations of the First Amendment, the Privacy Act, and other
laws present major hurdles to U.S. efforts to fight information warfare. It
then proposes doctrinal and legislative reforms to improve national security
while ensuring protection for civil liberties. As democracies worldwide
increasingly face the threat of information warfare, the article’s analysis of
the appropriate balance between national security and protection of civil
liberties is broadly applicable to many other states.

In short, the
article argues that the U.S. Supreme Court’s interpretation of the First
Amendment does not apply well to the realities of political speech on the
Internet and social media. Justice Kennedy has famously likened the Internet to
“the new public square,” but the Internet and social media are unlike the
much-hallowed, metaphorical public square with its Millian marketplace of
ideas. U.S. Supreme Court jurisprudence fails to consider the unique characteristics
of social media that distort free speech and allow foreign enemies to exploit
the U.S.’s information environment. U.S. Supreme Court doctrine is rooted in the idea that true speech should
be used to counter false speech: a doctrine known as counterspeech. However, speech and counterspeech are not
heard and understood on social media in the same way that they are in the
traditional public sphere. For example, recent social science experiments have cast
doubt on the effectiveness of counterspeech, especially in the social media
context.

Moreover, Supreme
Court jurisprudence erroneously likens social media to traditional media. For
example, traditional news platforms include editorial vetting. Editors and
journalists from traditional media outlets are generally professionalized and
trained to take seriously their important role of providing objective
information to the members of a democratic society and playing a check on
government by ensuring transparency. Social media has little to no editorial
vetting. Nearly anyone can be a journalist on the Internet and social media,
regardless of training. These differences make much Supreme Court jurisprudence
inapt for the social media context.

Other legal
factors hamper the U.S.’s ability to combat information warfare. For example, First
Amendment doctrine protects false speech, which may include enemy
disinformation. While Russian disinformation efforts may have incited violence
in the U.S. in the colloquial sense, most enemy information warfare and
propaganda efforts would not qualify as incitement under Supreme Court
precedent. The “imminence” element of the incitement standard is challenging to
apply in the online context—presenting another example of the difficulty of
applying prior free speech jurisprudence to online platforms. Also, the Privacy Act and other surveillance
laws forbid the government from collecting data
relating to U.S. persons’ First Amendment activities. These acts include an
exception for law enforcement but not national security actors like the State
Department, impeding a whole-of-government approach to combatting information
warfare.

How can
democracies deconflict their legal environments to better combat information
warfare? In the U.S. context, we argue
that Supreme Court doctrine should be revised to treat online platforms and
social media companies as distinct entities based on their unique functions.
Moreover, Supreme Court doctrine should be reformed to recognize that preserving
the integrity of the electoral process is a national security interest and
integral to the First Amendment itself. First
Amendment jurisprudence has always given the highest protection to political
speech because of its importance to the political process; ergo, it follows
that the First Amendment should protect the integrity of the electoral process
itself. Congress should thus enact legislation that would balance protecting
the national security interest in preserving the integrity of the electoral
process with U.S. persons’ First Amendment and privacy rights.

In a landmark decision prohibiting the use of harsh physical methods during questioning of suspected terrorists, Israeli Supreme Court Justice Ehud Barak famously wrote that “Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand.” Barak argued that preserving the rule of law and civil liberties were part and parcel to national security and strengthened the spirit of democracies. Indeed, when combating enemy information warfare, democracies must take care not to unduly infringe on the democratic freedoms of their own citizens. To do otherwise would be to crush the spirit of societies that have always thrived on free speech and information. The U.S. and other democracies must adopt new laws to better combat enemy information warfare while still protecting civil liberties. The very meaning of liberal democracy may be at stake.

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